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    "judges": [
      "Judges JOHNSON and MARTIN, JOHN C., concur."
    ],
    "parties": [
      "DANIEL W. WILLIAMS, Petitioner v. N.C. DEPARTMENT OF ECONOMIC AND COMMUNITY DEVELOPMENT, Respondent"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nThe North Carolina Department of Economic and Community Development (NCECD) appeals from an order of the trial court which reversed in part a decision of the State Personnel Commission (SPC).\nNCECD dismissed Daniel W. Williams (Williams) from his position as Chief Helicopter Pilot and cited, as reason for the dismissal, failure to maintain a valid FAA license with the appropriate medical certification for operation of an airplane as a commercial pilot. Pursuant to N.C. Gen. Stat. \u00a7 150B-23, Williams filed a petition with the Office of Administrative Hearings (OAH) for a contested case hearing, alleging that the NCECD wrongfully discharged him, in that his discharge was discriminatory because of his age, health status, political affiliation, and because he \u201craised questions about unsafe activities and improper operational procedures.\u201d Williams further alleged that NCECD denied his request to exhaust his \u201cearned annual leave,\u201d an election Williams claims is available to him under Chapter 135.\nAn Administrative Law Judge (AU) was assigned to Williams\u2019 case, pursuant to N.C. Gen. Stat. \u00a7 150B-32 and made the following findings of fact, which were adopted by the SPC, and are not disputed by the parties:\n7. [Williams] was employed as a helicopter pilot in the Executive Aircraft Operations (EAO) of [NCECD],\n10. On March 2, 1988, [Williams] had a physical examination at the Division of Occupational Medicine of the Duke University Medical Center, Durham, North Carolina in accordance with the usual procedure for the pilots of EAO.\n11. On March 8, 1988[,] [Williams] suffered an attack of angina\n12. On March 9, 1988, Dr. Locklear performed coronary artery bypass surgery on [Williams].\n13. [Williams] went on sick leave starting March 8, 1988 and continued on such leave until October 17, 1988 when he started using his annual leave, resulting in [Williams] having 238 hours of accrued annual leave on December 31, 1988 to carry over to 1989. As of January 1, 1989 [Williams] went back on sick leave until August 18, 1989 when he switched to annual leave until his dismissal on September 22, 1989.\n16. At some time during the Spring of 1989, approximately one year after his surgery, [Williams] applied to the Federal Aviation Authority (FAA) for the issuance of a first class medical certificate.\n[EAO pilots were required to hold a first class medical certificate, issued by the FAA.]\n31. On July 19, 1989, Dr. Broadwell [a Duke University Hospital doctor, who performs Duke\u2019s contract with the N.C. Department of Commerce for the examination of their pilots] wrote Roger Lowery [the Director of Flight Operations of EAO] informing him that the FAA had ruled [Williams] ineligible for either a first or second class medical certificate.\n34. On August 4, 1989, about two months prior to his dismissal, [Williams] submitted to the State Disability Office (SDO) a medical report signed by his physician, stating that [Williams] was totally and permanently disabled to perform his job as a pilot.\n35. The Medical Review Board, which approves disability for state employees, accepted this determination.\n36. On August 11, 1989, [Williams] executed a notarized application for long term disability.\n37. That application was inadequate in that (a) it was not notarized and (b) it showed an incorrect benefit effective date of October 1, 1989.\n38. The application was later resubmitted and the SDO subsequently changed the effective date of long-term disability benefits from October 1, 1989 to May 8, 1989.\n41. [Williams\u2019] onset of disability was March 8, 1988. 60 days from March 8, 1988 was May 7, 1988. 365 days of short term disability benefits ended on May 7, 1989, and long term benefits could begin on the following day.\n42. When [Williams] learned that his disability benefits date was not October 1, he decided not to go out on disability but to stay in his job.\n43. After [Williams] decided to stay on the payroll, he sent a letter to [NCECD] requesting reasonable accommodation if they determined that he could not perform the duties of his position.\n44. On September 22, 1989 [Williams] was called to a meeting in William Dunn\u2019s office. Mr. Dunn, who was the Deputy Directory of [NCECD], explained to [Williams] that [NCECD] needed to fill the pilot position and that if [Williams] refused to resign he would be terminated.\n45. Mr. Dunn further stated that it would not be possible for him to be placed in another position and that without the proper medical certificate he could not fly for [NCECD].\n46. Despite Mr. Dunn\u2019s urgings [Williams] continued to refuse to resign and Mr. Dunn issued a letter of dismissal stating that [Williams] was dismissed because he was unable to obtain the appropriate medical certification necessary for a commercial pilot\u2019s license.\n47. [Williams] was given a letter of dismissal, with that dismissal effective September 22, 1989.\n48. [Williams] then asked Director Dunn to keep him on the payroll through the remainder of his accrued annual leave. Since his leave would take him through October, he would earn additional sick and annual leave for the month of October.\n49. Sadie Jackson, a personnel technician with [NCECD], testified, and it is found as fact, that [Williams] would have earned leave had he remained on salary continuation through the month of October.\n50. [Williams] was not given salary continuation status.\n51. At the time of his dismissal, [Williams] held neither a first, second, or third class medical certificate.\n52. At the time of [Williams\u2019] dismissal, he had 240 hours of annual leave accrued.\nThe ALJ recommended, pursuant to N.C. Gen. Stat. \u00a7 150B-34, that the NCECD\u2019s dismissal of Williams be upheld, and that:\n2. . . . [NCECD] compensate [Williams] for the additional annual leave he would have accrued had he stayed on salary continuation through the end of his accrued annual leave.\nThe SPC adopted the ALJ\u2019s recommendation that Williams\u2019 dismissal be upheld and refused to follow the AU\u2019s recommendation number two. Thus, the SPC upheld the NCECD\u2019s dismissal of Williams but denied him compensation for the additional leave he would have earned had he been allowed to remain on \u201csalary continuation.\u201d Williams then filed a petition for judicial review, pursuant to N.C. Gen. Stat. \u00a7 150B-43. The trial court ordered that \u201c[Williams] dismissal is upheld but [Williams shall] be compensated for the additional annual leave he would have accrued had he stayed on salary continuation through the end of his accrued annual leave.\u201d The trial court further ordered an award of attorney fees to Williams, as the prevailing party. NCECD appeals from this order.\nWe note that although Williams attempts to cross-assign error, only his first cross-assignment provides \u201can alternative basis in law for supporting the\u201d trial court\u2019s order. We do not address this cross-assignment, however, because it is not set forth in the record on appeal. N.C.R. App. P. 9(a)(l)(k), 10(d); see Cieszko v. Clark, 92 N.C. App. 290, 294, 374 S.E.2d 456, 459 (1988). Because the arguments set forth in Williams\u2019 purported cross-assignments are reasons that the trial court\u2019s order upholding his dismissal should be reversed and do not provide \u201can alternative basis in law for supporting the\u201d trial court\u2019s order, the proper method to raise these questions on appeal would have been a cross-appeal, Cox v. Robert C. Rhein Interest, Inc., 100 N.C. App. 584, 588, 397 S.E.2d 358, 361 (1990), and his failure to appeal \u201cwaives our consideration on appeal.\u201d In the Matter of Appeal from Civil Penalty, 92 N.C. App. 1, 5-6, 373 S.E.2d 572, 575 (1988), rev\u2019d on other grounds, 324 N.C. 373, 379 S.E.2d 30 (1989).\nThe issue is whether a disabled State employee who is terminated for just cause may elect, pursuant to Chapter 135, Article 6 of the North Carolina General Statutes, to exhaust his accumulated vacation leave in lieu of receipt of his long-term disability benefits for the period of his accumulated vacation leave.\nThe question involves an interpretation of statutes and thus, we review the SPC\u2019s decision de novo. See N.C.G.S. \u00a7 150B-51(b) (1991); Brooks v. Ansco & Assocs., 114 N.C. App. 711, 716, 443 S.E.2d 89, 92 (1994) (allegation that agency decision is based upon an error of law requires de novo review); Brooks, Comm\u2019r of Labor v. Rebarco, Inc., 91 N.C. App. 459, 463, 372 S.E.2d 342, 345 (1988) (allegation of error in interpreting statute is an allegation of an error of law).\nA career State employee may be discharged for \u201cjust cause,\u2019 N.C.G.S. \u00a7 126-35(a) (1993), which includes \u201c[f]ailure to maintain\u2019 such license, registration or certification as required by the employee\u2019s special position. N.C. Admin. Code tit. 25, r. IJ.0612(b) (December 1994). An eligible State employee who becomes disabled during his employment is entitled to receive disability benefits under Article 6, Chapter 135, known as the \u201cDisability Income Plan of North Carolina\u201d (DIP). The employee becomes eligible for these benefits after a waiting period of sixty days following the disability. N.C.G.S. \u00a7 135-104(a) (1994). \u201cDuring this waiting period, [an employee] may be paid such continuation of salary as provided by an employer through the use of sick leave, vacation leave or any other salary continuation.\u201d Id. Following the waiting period, the employee may begin to receive short-term disability benefits for a period of 365 days, or \u201cmay elect to receive any salary continuation as provided in G.S. 135-104 in lieu of short-term disability benefits . . . .\u201d N.C.G.S. \u00a7 135-105(b) (1994). Long-term disability benefits are not available until short-term benefits are concluded, N.C.G.S. \u00a7 135-106(a) (1994), and the employee \u201cmay elect to receive any salary continuation as provided in G.S. 135-104 in lieu of long-term disability benefits . . . .\u201d N.C.G.S. \u00a7 135-106(b). Additionally, no disability payments will begin until the period covering any lump sum payout for accrued leave has expired. Id.\nOnce an eligible employee becomes disabled he is entitled to elect to receive, N.C.G.S. \u00a7\u00a7 135-105(b), -106(b), as a form of disability payment, \u201csalary continuation\u201d which includes accumulated vacation leave. N.C.G.S. \u00a7 135-104(a). If the eligible employee\u2019s disability occurs before his termination, the employee is entitled to make his elections under DIP, whether that election occurs before or after his termination. See N.C.G.S. \u00a7 135-103(b)(l) (disabled employee may participate in DIP unless he is terminated prior to disability).\nThe undisputed findings of the Commission are that Williams was terminated on 22 September 1989, that he had been disabled since March of 1988 and that he had applied for long-term disability benefits on 11 August 1989. Those findings also reveal that at the same time NCECD terminated his employment, Williams requested that NCECD \u201ckeep him on the payroll through the remainder of his accrued... leave.\u201d Because Williams had submitted an application for long-term disability and requested that he remain on the payroll until his accrued leave was exhausted, his request is sufficient exercise of his right to take salary continuation as a form of long-term disability payments, and because Williams was disabled prior to his termination, the trial court correctly ordered that Williams be \u201ccompensated for the additional annual leave he would have accrued had he stayed on salary continuation through the end of his accrued annual leave.\u201d\nNCECD, relying on N.C. Gen. Stat. \u00a7\u00a7 126-41, 6-19.1, also argues that because the trial court\u2019s partial reversal of the SPC\u2019s decision was in error, its award of attorney fees to Williams was also in error. Because we have determined that the trial court correctly reversed the SPC by awarding Williams additional compensation, we reject NCECD\u2019s argument.\nAffirmed.\nJudges JOHNSON and MARTIN, JOHN C., concur.",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "M. Jackson Nichols for petitioner-appellee.",
      "Attorney General Michael F. Easley, by Special Deputy Attorney General Charles J. Murray, for the State."
    ],
    "corrections": "",
    "head_matter": "DANIEL W. WILLIAMS, Petitioner v. N.C. DEPARTMENT OF ECONOMIC AND COMMUNITY DEVELOPMENT, Respondent\nNo. COA94-1108\n(Filed 18 July 1995)\nPublic Officers and Employees \u00a7 59 (NCI4th)\u2014 disabled employee terminated for just cause \u2014 exhaustion of vacation allowed in lieu of long-term disability benefits\nA disabled State employee who is terminated for just cause may elect, pursuant to N.C.G.S. Chapter 135, Article 6, to exhaust his accumulated vacation leave in lieu of receipt of his long-term disability benefits for the period of his accumulated vacation leave.\nAm Jnr 2d, Civil Service \u00a7\u00a7 48-50.\nAppeal by respondent from order entered 27 June 1994 in Wake County Superior Court by Judge Gregory A. Weeks. Heard in the Court of Appeals 5 June 1995.\nM. Jackson Nichols for petitioner-appellee.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Charles J. Murray, for the State."
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